The U.S. Supreme Court has denied an appeal from Google in its ongoing legal battle with Oracle over software copyright. The move means that the search giant, which argues that its reliance on Oracle's software development tools falls under fair use, must go back and try to sway the lower courts.

The outcome of this 5-year-old tussle may have enormous repercussions across the tech industry. Oracle sees itself as a champion of sorts, fighting to protect intellectual property rights. Google, on the other hand, believes it is defending innovation. If the courts rule that application programming interfaces (APIs) are subject to copyright, the decision could severely restrict the ability of coders to build on or modify the work of others.

That's no small matter. Advances in software often come from app makers adapting or furthering someone else's code to solve problems or create something new. Whatever final rulings come from this case could shape the very nature of all future software development—and apparently, the Supreme Court wants nothing to do with making this decision.

With so much hanging in the balance, let's take a look at how we got here.

Is It Taking Cues Or Stealing?

The court case tells a similar story to others found in everything from music to novels: Everyone can agree that there's a fine line between being inspired by something and ripping it off. But the opinions vary on where it should lie.

In the feud between Oracle and Google, which dates back to August 2010, that line is drawn by Google's usage of Oracle's Java APIs as the foundation of Android. (See our API explainer.) Software makers use APIs to hook into applications and platforms, either to tie existing products or services to them or, as in this case, to build their own works on top of them.

The primary conflict: While Google created its own modified version of Java for its mobile operating system, the company left several of its conventions and code structures in place to help developers build for the platform. Oracle thinks that's unfair.

In 2012, Judge William Alsup of the Northern District of California ruled that APIs could not be subject to copyright. That decision was later overturned by the U.S. Court of Appeals in May 2014, in a ruling deemed "disastrous" by the Electronic Frontier Foundation. Google has the opportunity to present a fair-use defense—but now, that argument will head to the lower courts instead of the Supreme Court.

Protecting Innovation

The Journal quoted Oracle General Counsel Dorian Daley as saying that the high court's move “is a win for innovation and for the technology industry that relies on copyright protection to fuel innovation.”

Both sides believe they're fighting to foster software innovation, whether that's by protecting the work done by developers (Oracle) or allowing other developers the freedom to reuse the same basic frameworks (Google).

In 2012, Google said it believes that "open and interoperable computer languages form an essential basis for software development" and now it's going to have to argue that case all over again.

If the tech giant loses, its Android platform—which powers everything from phones and tablets to televisions, connected car technologies and smartwatches—could suddenly become prohibitively expensive for developers and partners to adopt. That may prompt the company to switch to one of its own homegrown languages (such as Go or Dart) to avoid that scenario.

It's hard to see how that could be a win for developers, and Oracle more or less stands alone in believing that this is a productive path for the software industry. Winning a $1 billion suit, however, would be rather productive for the company itself.

Ending a marriage is never easy, but Facebook may be able to streamline the process. The de facto platform for communication for just about everyone, the social network could take on a new role as a place to serve divorce papers.

This week, Manhattan Supreme Court Justice Matthew Cooper granted 26-year-old Ellanora Baidoo permission to serve papers to her elusive husband, Victor Sena Blood-Dzraku, via a Facebook message. People have served legal notices before using the network, but Baidoo’s case is one of the few in the U.S., and the first here that legally recognizes it as a means of official communication in divorce proceedings.

Sounds handy, but that doesn't mean Facebook messages universally hold up as official courtroom communication. Right now, the rules vary—which may be bad for efficiency, but good for staving off any wacky ideas tech companies could possibly have to monetize our woes.

You Got Served

When it comes to serving court papers, procedures can differ across state and county lines. But in general, they can be rather picky about what constitutes proper legal notification.

Email or fax doesn’t legally count. In most cases, you have to either mail the documents to the last known address or physically hand them to the person (usually through a third-party service). If nothing else works, you can also publish the notice in the newspaper—which is what typically what happens when you can’t reach a deadbeat spouse.

Justice Cooper's decision seems to put Facebook messages on par with postal mail, but with a caveat: As the judge wrote in the court documents, the "transmittal shall be repeated by plaintiff’s attorney to defendant once a week for three consecutive weeks or until acknowledged,” to prove that the papers have been received.

Invoking the social network was a last resort. Sena Blood-Dzraku's whereabouts in the real world were unknown. But because he communicated with his estranged wife via phone calls and Facebook, Baidoo knew where to find him online. Her lawyer first attempted to serve Sena Blood-Dzraku through his client’s Facebook account last week. So far, he hasn't responded.

Friending The Courts

Facebook may have unwittingly made itself more appealing for courtroom communications. In trying to appeal to businesses and other users, it has implemented read receipts for messages and promised more secure messaging.

That may be enough for some judges at the state level, where divorce proceedings take place, but it's not at all clear that all judges or lawmakers agree. As it is, some seem more concerned about electronic communication than others.

Facebook makes plenty of promises about security and privacy, but in light of recent well-publicized hacking incidents, worries run high. The social network (and any other messaging service) would have to lock their systems down enough to satisfactorily safeguard confidential court papers. It's also hard to overlook issues like account abandonment or simple carelessness. Even if the message was marked as read, it’s all too easy to deny being served if a friend used the account, or if the Facebook account was accessed on a shared computer used by roommates or others.

Despite these complications, it's likely just a matter of time before digital communications will become more legitimized in legal settings—just as they have in medical, banking and other areas. The upside is that replacing paper-bound documents with electronic notices can boost efficiency. The down side: It might not be long before Facebook, Gmail or other services try to monetize our legal scuffles.

If you send or receive divorce papers, will you suddenly start getting ads like this? No thanks.

Marriott’s intentions have been clear, even before the kerfuffle in Nashville. Last August, the company joined the American Hotel & Lodging Association in filing a petition with the FCC, asking for permission to stamp out other people's hotspots.

It was an uphill battle from the start. The FCC does not take kindly to companies messing with the public’s Wi-Fi connectivity. Citing the Communications Act, the commission stands by the premise that all Wi-Fi gadgets should have unfettered access to unlicensed wireless spectrum—and if there was any confusion over this position, the FCC made it plain last month when it called out the illegality of Marriott’s tactics:

The Communications Act prohibits anyone from willfully or maliciously interfering with authorized radio communications, including Wi-Fi. Marriott's request seeking the FCC's blessing to block guests' use of non-Marriott networks is contrary to this basic principle…. The Enforcement Bureau recently imposed a $600,000 fine on Marriott for this kind of conduct, and the FCC will continue to enforce the Communications Act if others act similarly.

The Enforcement Bureau has seen a disturbing trend in which hotels and other commercial establishments block wireless consumers from using their own personal Wi-Fi hot spots on the commercial establishment’s premises. As a result, the Bureau is protecting consumers by aggressively investigating and acting against such unlawful intentional interference.

No wonder Marriott gave up. Apparently its vague security concerns just weren’t disconcerting enough to make this battle worthwhile.

Over the past few days hackers were allegedly able to seize celebrity nude photos through an iCloud vulnerability. This leak has been popularized on sites like 4chan and Reddit as “The Fappening,” a portmanteau of “happening” and “fapping,” a slang term for masturbating.

The photos first appeared on 4chan, where an anonymous hacker was publicizing them in exchange for payment in pseudonymous cryptocurrency Bitcoin. Now that the FBI is investigating the leak, it’s unclear how long he, she, or they will stay anonymous.

Now it appears that 4chan’s leadership is taking protective action for the site. Some time on Tuesday, TorrentFreak reports, the site initiated a DMCA policy. TorrentFreak noted that it is still unclear if the DMCA policy is in direct response to the leak that's on everyone's minds.

The policy page notifies visitors of a DMCA agent for 4chan, who will now become the point of contact for any takedown requests to the site. This agent will be the sole outlet for complainants who want to report copyright violations on 4chan.

Probably the reason 4chan has never had a DMCA policy before this week is because the site deletes old content at an expeditious rate to the point that 4chan threads are rarely available for much longer than a few hours.

“Threads expire and are pruned by 4chan's software at a relatively high rate. Since most boards are limited to eleven or sixteen pages, content is usually available for only a few hours or days before it is removed,” the 4chan FAQ reads.

Following a federal court ruling last year that Apple conspired with publishers to fix ebook prices, the tech company has agreed to settle a lawsuit seeking as much as $840 million in damages. Details of the agreement between Apple, U.S. states and consumers weren't available, although a federal judge in Manhattan set a one-month deadline to file the settlement.

Netflix sure knows how to get a rise out of Internet service providers: Since mid-May, the streaming video service has been posting an error notice to Verizon subscribers blaming the network for slow delivery of its online videos. Verizon issued a cease-and-desist order and demanded lists of Netflix customers who might have seen this message.

Your interpretation mischaracterizes our messaging. The message you cite to in your letter merely lets our consumers know that the Verizon network is crowded.… The message is part of our ongoing transparency efforts.

Basically, Netflix said that the error message was merely part of a transparency test, which is set to end June 16. Whether that was always the plan or merely a last-minute decision to (somewhat) appease the ISP isn't clear, though it's very likely the latter.

Still, Netflix couldn't resist throwing in a few barbs:

In fact, it is my understanding that Verizon actually upsells customers to higher speed packages based on improved access to video services, including Netflix.... To ensure that these customers get the level of service they pay you for, it is your responsibility to make sure your network, including your interconnection points, have sufficient capacity to accommodate the data requests made by those customers.

Translation: You're charging people for service you aren't providing, and somehow calling Netflix on that? That's just not cool.

Then things took a turn for the hilarious.

To try to shift blame to us for performance issues arising from interconnection congestion is like blaming drivers on a bridge for traffic jams when you’re the one who decided to leave three lanes closed during rush hour.

In addition, the streaming company criticized Verizon's refusal to join Open Connect, the peering and caching program Netflix established to allow ISPs to connect right to the service directly instead of going through third-party content delivery networks. Participants include Frontier, British Telecom, TDC, Clearwire, Telus, Bell Canada, Virgin, Cablevision, Google Fiber and others. Notably Verizon and Comcast are both missing from the list.

You have chosen not to participate in the Open Connect Program, but instead have allowed your network connection to Netflix to degrade until we agreed to pay for augmented interconnection. We brought the data right to your doorstep...all you had to do was open your door.

Meanwhile, Netflix flatly ignored Verizon's demand for the subscriber list. No word yet on the broadband provider's next course of action, but we're getting the popcorn ready for the next act in this little play. Because it's quite likely that Verizon's rebuttal will be swift and fierce. Unfortunately, as the drama continues on, viewers are the ones who are losing.

The tangle of patent litigation between two of the world’s top tech companies appears to have just straightened out: Apple and Google's Motorola Mobility have agreed to stop suing each other over smartphone technology and “work together in some areas of patent reform,” Reuters reported Friday.

It’s not clear what that means precisely, other than putting a kibosh on all existing lawsuits between the iPhone maker and Android company. That would effectively end roughly 20 cases in the United States and Germany, said a Gigaom source “familiar with the litigation.” Patent lawsuits between Apple and Samsung don’t appear to be affected or influenced by the agreement.

The Platform is a regular column by mobile editor Dan Rowinski. Ubiquitous computing, ambient intelligence and pervasive networks are changing the way humans interact with everything.

Any artist that's ever dealt with copyright will tell you one basic fact: Copyright is the most confusing, convoluted and capricious aspect of intellectual property rights ever created. You thought patents were bad? Delve into the world of copyright and just wait for your head to explode.

This is what makes the imbroglio between Oracle and Google over the use of copyright in Java such a hard case to understand. It could, however, set a dangerous legal precedent for software development for years to come.

The Musician: Licensing Vs. Fair Use

Let’s say I am a musician. I want to cover a song from one of my favorite artists. Technically, I don’t need to get the license of the song if I am just playing it at the local bar. But the venue I am playing at may need to pay a license fee to a rights holder organization to allow for the use of cover songs or DJs in its establishment.

Now, if I am going to release that cover song on my next album (which will be sold for profit), I need to get the rights from the rights holder, which may be a music studio or an individual artist. If I want to use that cover song in a movie, I need to get a different kind of license. One way or another, if I am making money with the cover song, I am going to have to pay somebody else for that privilege.

But what if I'm just using a part of a song—albeit word for word, note for note—in part of my song? Or what if I change the song just enough so that it's not technically a cover but my own original representation inspired by the original performance? That could be considered “fair use,” a legal doctrine where short portion of original copyrighted works can be used verbatim in a fair and reasonable way that does not impair the value of the materials or take profit away from copyright owner.

Quick Thought: The Fast Lane & Reclassification

If you or your company wants faster Internet service, you may have to pay to be in the "fast lane" in the near future. That's what the broadband and cellular carriers want to happen and would violate the concept of Net Neutrality that is the biggest issue facing Internet technology and innovation today.

According to The Wall Street Journal, Federal Communication Commission chairman Tom Wheeler wants to prohibit this concept of two Internets through regulation and policy currently being debated. The Commission is debating whether or not a "paid prioritization" model should be adopted in its latest proposal over Net Neutrality and nobody outside the broadband providers likes the idea, especially content-heavy companies like Netflix and Google.

If Wheeler ever really wants to make substantial and lasting policy, the FCC will eventually have to reclassify broadband as a public utility and take control over all regulation of Internet access. Reclassification would be Wheeler's nuclear measure and the FCC could face lawsuits for years from the broadband companies to get it to stick. At some point, policy debate and compromise is just not a viable option and reclassification may be the only way to go.

The fair use vs. licensing rights battle has played out thousands of times between artists, especially when it comes to using the same work for different media like television, film, live performances, digital and physical storage. What is significant in the Oracle vs. Google copyright lawsuit is that this artistic nature of copyright is now being applied to computer code.

What makes the Oracle and Google fight so important is not (really) the specifics of what Google may or may not have copied in terms of Java APIs for use in Android. The danger is in applying copyright to a computer language and the far-reaching impact that could have on the software industry.

Pandora’s Programmer

If you are unfamiliar with the specifics of the Oracle and Google case, the synopsis is pretty straightforward: Google wanted to use Java to build Android. Google did not believe it needed a license from Oracle to use Android if it changed the specifics of how the Java APIs were used. Google then went on to basically write its own version of Java APIs for Android. In doing so, Google uses a similar style and structure as the original Java, but in some cases used similar categories, headers and objects within the code. (This is the "structure, sequence and organization" that the court documents mention over and over again.)

In the millions of lines of code that Google wrote for Android, about eight lines were direct copies from Oracle’s Java, while the look of the APIs was very similar but written differently.

As one ReadWrite commenter put it last week, “Google basically [thought] that Java sucked for its purposes so they copied the ‘table of contents’ and then rewrote the book themselves to be 'better.'”

If we compare what Google did with Java for Android and the case of the musician above, where does the line fall between the need to license the original work and the fair use to create an original representation?

The original jury in the case could not answer that question. Judge William Alsup ruled in place of the jury that the API elements Google copied—i.e., their names and organization—weren't subject to copyright, a win for Google. Alsup's ruling mooted the fair-use question.

But a federal appeals court just overturned Alsup’s ruling, saying APIs are copyrightable—that's a win for Oracle. The appellate panel returned the case to the lower court for a ruling on Google's fair-use claim.

Part of Oracle’s argument is that it's protecting Java from fragmentation and interoperability issues for developers. This argument rings a little hollow when considering how Java has been forked several times over by companies and individual developers for their own purposes, and that there are already dozens of competing programming languages that share many of the same properties and principles with Java to achieve similar goals. Essentially, the world of computer programming languages has been fragmented for decades.

What Oracle is doing is attempting to create a legal precedent to protect its own corporate interests and sell more licenses and the support that goes with them. Third-party briefs filed in the case—from the likes of Microsoft and IBM—support Oracle’s stance because it preserves the business models of those particular companies as well.

But developers are not exactly enthused with the ruling. By protecting its own selfish interests, Oracle is opening a Pandora’s box that could have much wider impact than just its fight with Google.

"While the goal of avoiding fragmentation of Java that has been Oracle's stated intent in pursuing this has some merit, we're not comfortable with the idea that copyrighting APIs is the way to accomplish this,” said Apigee’s VP of product strategy Ed Anuff. “It's likely going to have the opposite effect, causing the proliferation of convoluted APIs for no other reason than to avoid the potential of legal exposure. That's a no win proposition for anyone involved."

The fear within the software industry is that copyright will become the new favorite weapon of corporate lawyers everywhere. If patent troll lawsuits become an insufficient means to hurting competitors in court, companies may just turn to the copyright route to damage their competitors, opening up the potential for an explosion of lawsuits and injunctions.

What Happens To Android?

What Android developers want to know is, “How does this affect me?”

In the short term, it doesn’t.

The case has been remanded back to the original district court for now, but Google is likely to take it all the way to the United States Supreme Court. So while the case is still being adjudicated, Android is going to continue with business as usual. If the Supreme Court hears the case, it will be months at the very least, if not a year or more, before a decision comes that would affect Google, Android and developers.

Quote Of The Day: "I don't trust them not to detain me, interrogate me and even arrest me. Their behaviour has been so extreme and offensive, and the political and media class was so supportive of it, that I feel uncomfortable with the entire atmosphere." ~ Journalist Glenn Greewald on his reluctance to enter the United Kingdom after publishing Edward Snowden's leaked documents on the NSA in 2013.

If Google loses and Android becomes prohibitively expensive (either because Google would have to license Java from Oracle or pay a large lump sum in damages), it would change the free and open source nature of the Android Open Source Project (AOSP). What Google would do then is anybody’s guess. Android is so big with so many installed phones that the general thought is that Google would somehow make it work.

In the meantime, Google could fundamentally change Android development, going with its own non-Java languages that have been in development such as Go and Dart. If Google goes down this road, it will make developers learn new languages that would further fragment the software development ecosystem and affect hundreds of thousands of developers and a million apps. Google would love to make Go the premier language to replace the likes of Java and C++, but it will face opposition on that front from a variety of sectors.

Google already employs a non-Java compiler in open source Dalvik for Android that compiles Java into bytecode (machine code) to run on a device. Dalvik replaces the need for a Java Virtual Machine complier in Android and Oracle is none too happy about that. Dalvik will soon be replaced with its next version built by Google, Android Runtime. Just like the compiler, Google could pragmatically move pieces of Android off of Java and wipe its hands of Oracle all together. That is not an easy, or fast, process.

Oracle’s best interest is to create a continuing revenue stream from Google over Android, so killing off Android itself is not (or should not) be its primary goal. The threat to Android is more existential than tangible at this point with the larger issue here the use of copyright in software development.

Correction, 3pm PT: An earlier version of this story misstated Judge Alsup's original ruling in the Oracle-Google case. The judge found that the API elements copied by Google were not covered by copyright.

Correction, 5:02pm PT: An earlier version of this story included an erroneous reference to the programming language Rust; it was developed at Mozilla, not Google.

The federal appeals court that handles U.S. intellectual property cases ruled that APIs can be copyrighted, a finding that may have significant consequences for cloud computing, software interoperability and innovation in general.

Judge William Alsup ruled in Google's favor in 2012, stating that APIs were purely functional, and thus not creative works deserving of copyright protection. The jury had previously deadlocked on whether Google's use of the Java APIs was covered by the "fair use" exception to copyright law, a critical question in the case that was mooted by the judge's ruling on copyrightability.

Oracle originally sued Google for patent infringement and copyright violation for using the Java programming language in its Android mobile operating system. The jury in the case found no patent infringement, but said that Google had copied the Java code from 37 APIs as well as nine lines of code from a specific routine in the operating system called "rangeCheck."

Google counterargued that computer code, like concepts in written language, were subject to fair use in terms of the specific structure, sequence and organization of that code.

Fair use is a legal exemption from copyright restriction that basically allows for limited copying of copyrighted material under certain circumstances, such as criticism, news reporting, teaching, and research. Generally, the concept of fair use hasn't applied to computer programming languages, which makes the case between Google and Oracle quite important for future innovation.

The appellate court ruled:

Because we conclude that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection, we reverse the district court’s copyrightability determination with instructions to reinstate the jury’s infringement finding as to the 37 Java packages. Because the jury deadlocked on fair use, we remand for further consideration of Google’s fair use defense in light of this decision. With respect to Google’s cross-appeal, we affirm the district court’s decisions: 1) granting Oracle’s motion for JMOL as to the eightdecompiled Java files that Google copied into Android; and (2) denying Google’s motion for JMOL with respect to the rangeCheck function. Accordingly, we affirm-in-part, reverse-in-part, and remand for further proceedings.

Oracle acquired Java when it purchased Sun Microsystems in 2009.

The appellate-court decision isn't just a matter of two tech giants battling it out in court. Often enough—as in the seemingly endless series of Apple vs. Samsung cases—court battles between tech titans can end up meaning very little to average users and developers. The Oracle-Google case, however, touches on fundamental aspects of software and the way programs and Web services interact with each other.

Here’s the problem: Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation. APIs are ubiquitous and fundamental to all kinds of program development. It is safe to say that ALL software developers use APIs to make their software work with other software. For example, the developers of an application like Firefox use APIs to make their application work with various OSes by asking the OS to do things like make network connections, open files, and display windows on the screen. Allowing a party to assert control over APIs means that a party can determine who can make compatible and interoperable software, an idea that is anathema to those who create the software we rely on everyday. Put clearly, the developer of a platform should not be able to control add-on software development for that platform. [Emphasis added]

The fight between Oracle and Google is nowhere near over. Google will almost certainly appeal the ruling to the Supreme Court, which over the past several years has shown a general willingness to rein in the federal-circuit court's rulings on intellectual property.

For now, the case has been remanded back to the federal district court in Northern California, where Google will have another chance to argue that its use of the Java APIs falls under fair use.

Update: Matt Kallman, Google's global communications and public affairs manager for patents, responded to the ruling in an email to ReadWrite: "We're disappointed by this ruling, which sets a damaging precedent for computer science and software development, and are considering our options."

Oracle issued the following statement:

We are extremely pleased that the Federal Circuit denied Google's attempt to drastically limit copyright protection for computer code. The Federal Circuit's opinion is a win for Oracle and the entire software industry that relies on copyright protection to fuel innovation and ensure that developers are rewarded for their breakthroughs. We are confident that the district court will appropriately apply the fair use doctrine on remand, which is not intended to protect naked commercial exploitation of copyrighted material.

A federal judge found that NSA programs for collecting bulk phone "metadata" are legal. Metadata consists of stored information about calls—i.e., what numbers you call, when you called them, for how long, and possibly where you were when you made the calls—but not the contents of actual conversations.

The ruling effectively dismissed a lawsuit brought by the American Civil Liberties Union. “This blunt tool only works because it collects everything,” Judge William Pauley said of the NSA program in his decision.

Judge Pauley's decision conflicts with a separate ruling last week by a federal judge in Washington, who found that the mass collection of phone records may be unconstitutional and described the program as "Orwellian." That conflict sets up a likely showdown before the Supreme Court.

Google once again is set to battle Oracle in court over how it used the Java programming language in building its Android mobile operating system. Oracle, which lost a patent and copyright battle to Google in the spring of 2012, has filed an appeal in the case and oral arguments started this week.

At the heart of the appeal was the ruling by Federal Court Judge William Alsup that application programming interfaces (APIs) cannot be copyrighted. In the original case, a jury came to a split decision that Google's use of Java APIs were considered "fair use." In the end, it did not matter what the jury decided because Alsup ruled against Oracle on if APIs could be copyrighted.

The primary issue in the appeal comes down to how Google used Java in Android. Overall, Google engineers wrote some 15 million lines of original code to build Android. But it relied on some of Java APIs (Oracle took control of the open source Java language when it bought Sun Microsystems in 2009) to build Android. Specifically at stake is the structure, sequence and organization (SSO) of the APIs, which Google basically rebuilt with their own code.

In his original ruling, Alsup said that parts of the APIs in question were not applicable to copyright. He described it in his 2012 judgement as akin to the organizing system of a library (think, the Dewey Decimal system) and could not be copyrighted.

In many ways, the Oracle and Google standoff pits old technology companies against newer companies. In February 2013, Microsoft, EMC and Netapp filed a joint brief supporting Oracle. The App Developers Alliance and Rackspace both support Google.

"The court's ruling, if allowed to stand, will deal a serious if not potentially staggering blow to existing incentives established by copyright law for innovation in this critical industry," the joint brief stated.

The appeal by Oracle was long expected after the split jury decision on fair use and Judge Alsup's controversial ruling on if APIs can be copyrighted.

Google is also facing another patent court battle from a group called the Rockstar Consortium over the implementation of Android. Rockstar is a company jointly owned by Apple, Sony, Microsoft, BlackBerry and Ericsson that formed after the group bought Nortel's patent portfolio at auction in 2011.

. The win, however, is unlikely to amount to much more than a moral victory - while serving to highlight how meaningless these courtroom skirmishes are to a smartphone market that the two technology giants continue to dominate.

The International Trade Commission said Tuesday that AT&T versions of Apple's iPhone 3GS and 4, and 3G-equipped models of iPad and iPad 2, infringe on a Samsung patent covering cellular technology. The ITC issued a limited order barring those devices from being sold in the U.S. Apple has already said it plans to appeal the decision, which it can do via the federal courts or a direct appeal to the White House.

No Impact At All

in the United States." Samsung spokesperson Adam Yates countered with a statement that included this gem: “We believe the ITC’s Final Determination has confirmed Apple’s history of free-riding on Samsung’s technological innovations.”

For the uninitiated, that "history" dates back to Apple's original claims from April 2011 that

for patent infringement accusations by running announcements in newspapers and online.

Just as a ban on devices that account for little of Apple's current business won't change anything, neither did the "I'm Sorry," newspaper ads nor the $1 billion judgement Samsung is still appealing. The so-called consequences levied by courts and trade commissions have done nothing but chew up legal-system resources, give the media something to write about and keep both companies' legal teams busy.

When Giants Battle, The Little Guy Loses

Apple and Samsung continue to own the lion's share of the U.S. smartphone market.

The company's woes are due as much to branding misfires (gone is last year's "Quietly Brilliant" slogan) and a lack of financial muscle to compete with Apple and Samsung's marketing departments. But getting caught in Apple legal's crosshairs certainly didn't help.

Executive Order To End Patent Wars?

The Apple-Samsung spat is just the tip of the iceberg when it comes to technology industry patent issues, in the U.S. and internationally. Tuesday the Obama administration issued a

Patent trolls are just that, trolls. And despite their protestations, it seems clear that the big-name patent wars have become a little more than an expensive sideshow leeching the lifeblood out of industry while doing little to actually protect inventors. Apple, Samsung and the rest are spending billions of dollars and untold hours fighting in courtrooms and arguing over newspaper apologies. Wouldn't those resources be better directed towards innovation?

Ditto is a 15-person eyewear startup that utilizes remarkable software — a 3D modeling system that replicates the buyer's face — to let customers try on glasses virtually before purchasing them. Unfortunately for Ditto, its innovative software has put the company in the crosshairs of Glasses.com.

Glasses.com is owned by 1-800 Contacts, a much larger online eyewear retailer that recently purchased an old patent from a defunct company (U.S. Patent 7,016,824 covers selling glasses online based on 3D models) and announced its own version of 3D try-on software for glasses - while simultaneously filing a patent-infringement lawsuit against Ditto.

1-800 Contacts claims that it plans to its own service as an iPad app sometime soon. But this plan was first publicized on April 17, 2013, while Ditto launched its version a year ago.

David vs. Goliath

"It's a game-changing event, truly. It's terrifying," sighed Ditto CEO Kate Endress. "We've had to stop all marketing, every dollar has to go into this litigation." 1-800 Contacts refuses to license the patent to Ditto; instead it's seeking an injunction to stop Ditto from using the software. The only option, as Ditto sees it, is to lawyer-up and try and win the suit.

Making things even more expensive, 1-800 Contacts is suing California-based Ditto in its home state of Utah. Whatever the outcome of the suit, the most likely result is the depletion of Ditto's cash reserves and the destruction of the company.

"If we win this infringement case, we're still out the millions of dollars we spent winning. That's why it has become punitive for companies to innovate," Endress said. "The patent systems is structured in a way where it lets corporations act like patent trolls where they can buy things they didn't invent." And in this case, "we are literally going up against a giant corporation," Endress noted.

1-800-Not-Our-Fault

When reached for comment, 1-800 Contacts told ReadWrite:

1-800 CONTACTS and its Glasses.com division have invested significant time and resources into the development of the interactive try-on platform technology and acquiring the appropriate patent rights to protect it. However, we do not comment on pending litigation.

online: "1-800 Contacts invested significant time and resources to acquire and license the existent patent rights needed to practice its technology. Clearly, Ditto did not do the same."

The EFF was not impressed: "1-800-Contacts says it is not a patent troll. Sure, the company is not a classic patent troll - a shell company that does nothing but buy patents and sue - but it's little better."

What Makes A Patent Troll?

Could this entire issue be a misunderstanding, where 1-800 Contacts actually spent years pouring money into this concept, only to see a brash startup steal its lunch? Maybe, but 1-800 Contacts' history of aggressive litigation doesn't inspire confidence in that interpretation.

In 2002, the company pursued WellU.com over pop-up advertisements that displayed competitors' products. 1-800 Contacts was granted a preliminary injunction, but WellU won on appeal. In 2008, the company fought with Google over controversial search-related provisions of a Utah trademark law that were eventually repealed. And in 2010, 1-800-Contacts sued Contact Lens King, Inc. over key-word advertising.

Despite the odds, Endress vows that, "We're going to vigorously defend ourselves. We're so proud of what we built. Maybe we can become cash flow positive and survive." The EFF is asking for help in trying to invalidate the patent in question, but no matter how the legal complications unfold, the road Ditto faces will certainly be long and expensive.

OK, I didn't really abuse my robot dog. Although I might, if only to test cultural limits. Would you? It's just a robot, after all. A gadget.

If you spotted animal cruelty, would you react any differently if you discovered it wasn't really an animal but a robot? How about if it looked and behaved like a real dog — and even whimpered in pain? What if your daughter enjoyed pulling whiskers off the family cat — but it, too, was just a robot? Would that set off any alarms?

At first glance, it seems hard to justify differentiating between the legal treatment of a social robot, such as a Pleo dinosaur toy, and a household appliance, such as a toaster. Both are man-made objects that can be purchased on Amazon and used as we please. Yet there is a difference in how we perceive these two artifacts. While toasters are designed to make toast, social robots are designed to act as our companions.

Robots are all around us. Not Blade Runner-like android robots, of course. Not yet. Today's robots are used in medicine, to help build our cars, manufacture our smartphones, and in some cases, to clean our floors.

Such robots are typically developed for a specific purpose. They look, unsurprisingly, like nothing more than a functional machine. But not all. Some robots look "alive," like the popular Pleo They are designed as companions. Expect them to get better, more lifelike, more responsive — more like actual companions, in other words.

Do these robots deserve legal protection similar to what we now provide pets, for example, or horses? Your initial reaction may be, Of course not. But what if this social robot served as the equivalent of your family dog and someone came along and stole it, abused it and "killed" it? Then posted video on YouTube? (Go ahead — take our poll on the right, then sound off in comments.)

In her 2012 paper, "Extending Legal Rights to Social Robots," Darling makes it clear why people often find it more troubling to witness or incite violent or abusive acts on a "social robot" as opposed to a more machine-like, functional robot:

Studies involving state-of-the-art technology already indicate that humans interact differently with social robots than they do with other objects.

Robotic toys, household robots, and personal-care robots that interact with us on a social level generate stronger psychological attachments than we experience with everyday objects. This difference in how we perceive social robots could have legal implications.

Rapid advances in robotics, haptic feedback, voice recognition, design, data processing and algorithms are rapidly making highly realistic robot "pets" a reality for many. Nonetheless, that adorable, forever-puppy robot that "bonds" with your children presently has no more legal rights than the power drill hanging on the wall of your garage.

I spoke with Darling about social robots, typical human responses to them, and potential legal issues we all might face down the road.

ReadWrite: Should we grant rights to social robots?

Kate Darling: That's really up to society to decide. But there are two reasons it could make sense to give social robots some legal protection beyond the property right of the owner. The first is that if people feel strongly enough about it, for example the way that we feel about protecting certain animals from abuse, we might want the law to reflect that social preference.

The second is that we might want to deter types of behavior that could be harmful in other contexts. One theory behind animal rights looks at it not from the viewpoint of the animals' inherent capacities, but rather from the viewpoint of what it says about ourselves if we're willing to treat other creatures or things in a certain way.

RW: Are there examples of rights you would propose for social robots — robot pets?

KD: I would say that analogies to animal abuse laws are helpful — so not "the right to live", but rather protection from being treated in a way that we associate with unnecessary cruelty.

RW: Should such rules be different based upon what the robot is? A robot dog, for example, versus a robot woman.

KD: I would rather distinguish between robots that are specifically designed to interact with us socially and be anthropomorphized, as opposed to the many other robots, such as factory robots, that are not meant to engage our emotions.

KD: I think (YouTube videos of animal torture). Even with existing technology and very few use cases, the YouTube comments on videos picturing "torture" of robotic toys and pets are strikingly polarized. A lot of people get upset, or at least feel very uncomfortable watching something that they perceive as life-like get abused, accusing the video makers of horrible cruelty. This reaction is likely to become more common and more extreme with the increasing development of robots that are specifically designed to interact with us socially in a cute and sympathetic way.

RW: Have any religious groups promoted or restricted social robot rights?

KD: None that I am aware of. I could imagine that some might be opposed, but that really depends on their respective beliefs.

RW: Do you expect some societies to act first or differently regarding social robots?

KD: Some societies (like Japan and South Korea) seem to accept interaction with robots more easily, which could incentivize a societal push sooner than in other cultures.

Clearly, the ethical and legal implications of robots virtually endowed with human qualities can quickly sends many people down the rabbit hole. But society may be forced to grapple with the issue anyway. What if the robot looks not like the family dog, but like a human being? Is anyone harmed if your teenage son uses a fembot to practice sex with? (Or should that be "on"?)

Even when we can reliably predict aspects of the future, we seem to often miss out the larger implications of what we create. What do you think?

Major regulation is pending that could change the future of the mobile ecosystem and the way mobile apps are made, played and paid for. And it's not all good.

The Problem With App Rights

Two weeks ago, Rep. Hank Johnson (D-GA) released the APPS Rights Act, a bill pushing developers to implement self-regulatory practices that would improve the security and transparency of user data in mobile apps. "This bill would require that app developers maintain privacy policies, obtain consent from consumers before collecting data, and securely maintain the data that they collect," Johnson's office writes online.

There's not question that changes are needed. Mobile users must be able to make their information isn't transmitted and sold to third-party vendors. But like similar regulatory efforts, including the recent do-not-track mobile privacy guidelines laid out by the Federal Trade Commission last Friday, and last month's recommendations to the mobile industry from California Attorney General Kamala Harris, there's both good and bad aspects to the specific approach taken by the APPS Rights Act. And unfortunately, there's plenty of bad.

One problem with these guides is that they are penned by people outside of the industry — often in the dark about the best ways to reach their laudable goals. Harris' recommendation and the FTC's suggestions comprised a slew of unenforceable recommendations. The APPS bill, meanwhile, would become a mandate if adopted. A mandate likely to lead to unintended consequences to the mobile marketplace.

Developers Are Worried

Security expert Dan Kaminsky says the slow, muddled, legislative process can create frameworks bearing "no resemblance to the problems that need to be solved." Kaminsky thinks this could lead to applications having to show users exactly what they're doing in a hardware add-on - akin to web cams having a light that goes on insuring people are aware of exactly what they're doing.

"What I fear is you won't be able to write code without having to consult a lawyer," he says. And if that happens, Kaminsky adds, developers are likely move away from making mobile apps and return building websites.

Beyond subjecting users to long, complex terms-of-use agreements, the doesn't do a good specifying what happens to collected data beyond the third parties, says Joe Santilli, the chief executive of the mobile app certification service SafeApp. This gray area is known as data retention.

"It really doesn't make any provisions whatsoever for how third parties are going to share the data with so-called fourth or fifth parties," Santilli explains. "For example, a marketing partner of an ad network. These people are going to share the data that they cull from these apps... to fourth and fifth parties."

No one knows the length of time personal data will be stored, the rights of users and the process by which they exercise their rights when dealing with third and fourth parties. The APPS bill's withdrawal of consent form is a weak attempt at stemmin the data flow. The Opt Out of App Use function requires developers to delete all data if a user opts out. But that doesn't address the issue of fourth and fifth parties that may already have the data in question:

"By the time the app developer has seen this request from the user, this data has already been shared by the third party (to) the marketing partners, the ad networks, the ad analytics partners," Santilli says. "At this point you can't really put the genie back in the bottle, can you?"

At the same time, having to meet these requirements could kill the drive of young entrepreneurs, says developer Jad Meouchy. "This act will end up creating a barrier for new startups... by doubling development time and creating data management headaches," he predicts. "When you're an indie developer, there are simply not enough resources to address this kind of compliance."

Real-World Example

Benjamin Goering, the technical product manager at Livefyre Labs, manages more than 10 million comment threads and personal user accounts for customers. When those customers upgrade from freemium accounts to enterprise versions, they want their user data and accounts migrated. But if those people have not authorized that data to be shared, Livefyre can't make the transition for them.

But rather than stifle innovation, Goering worries that users won't take the rules seriously if they don't work. "It may be completely ignored if it's out of touch," Goering said. "If it's well legislated, it may be useful to have a framework for safe harbor" where developer can be confident they won't get sued

His team faced that issue when working on a Super Bowl product that aggregates tweets and Instagram photos. This raises the question of whether or not users know shared content is ripe for the plucking. Livefyre bet that users know their shared content may be re-used, and decided not to worry about legal red tape.

Goering warns that if developers have to wait for lawmakers to resolve everything, "it would be impossible to make week-long projects."

"The nature of the Web is you're requesting a document and receiving it - at some level data is being taken," he says. "Where do you draw that line?"

It passed the House, the Senate, and just before the new year, the President signed it into law. In a significant shift in video privacy - online video rental companies can now share information about the movies you rent or buy. As you might expect, things are about to get more social.

According to the new law, companies have to ask only once. You can opt out, but if you don't, say goodbye to the rights to your video data for two full years. As per the change, Netflix will introduce new social features that basically link users' Netflix and Facebook accounts and share their viewing history with friends. Netflix was previously unable to do this in the U.S. by the 25-year-old Video Privacy Protection Act (VPPA), which banned the sharing of personal data for anything but law enforcement purposes (even now, Hulu remains in court for previously sharing viewers' info).

On the surface, sharing viewing history may not seem like a big deal, but the law undermines the privacy of Internet users, and takes away user control over significant amounts of potentially sensitive personal data.

Looking back, it's ironic this new law even passed, as the VPPA was originally enacted in the 1980s in response to a local Washington newspaper publishing a list of Supreme Court nominee Robert Bork's rented videotapes during his nomination process. At that time, Congress was up in arms over this privacy breach, which helped scuttle Bork's appointment and led to the phrase "borked" entering the language. But less than a month after Bork's passing on December 19, 2012, it seems that Netflix investment of roughly half a million dollars in lobbying Congress to update the law was enough to do the trick.

The Privacy Issue

Almost one year ago to the day, Marc Rotenberg, the executive director and president of the Electronic Privacy Information Center (EPIC), testified in Congress against the bill, citing his organization's interest in "supporting the rights of Internet users to control the disclosure of their data held by private companies."

"The debate over online privacy and Netflix does not exist in a vacuum," Rotenberg stated at the hearing. "It is becoming increasingly clear that only privacy laws actually safeguard the privacy rights of Internet users."

In an interview with ReadWrite, Rotenberg said he urged the Senate Judiciary Committee to update the law with new safeguards. His warnings were not heeded. "Senator Franken (D-Minn.) and Senator Feinstein (D-Calif.) made some improvements to the House bill but it was still a step backward for online privacy," Rotenberg said.

Jules Polonetsky, the director and co-chair of the Future of Privacy Forum, said the the real issue is that people don't know they're sharing. When that sharing is done without user consent and system settings are unclear, it's bad for the public. "This is about the sharing of your records of video rental history, as opposed to on a clear, permission basis, enabling people to key-in sharing mode," he said. "Sharing should be in a clear opt-in basis."

Polonetsky compares the risk to what social video sites Viddy and Socialcam did when they first launched, gaming the Facebook system so anyone playing those companies' videos automatically alerted their Facebook friends to what they were watching. That accidental sharing is a major problem, Polonetsky warned.

"I saw a rabbi I know sharing a fairly raunchy video about girls on bikes, falling off bikes... a conservative, corporate lawyer sharing a somewhat offensive video, none of them clearly understanding that by clicking on some filthy link shared by their friends, to see what the attraction was, they'd be letting hundreds of their friends know and sullying their reputation."

Rainey Reitman, the Electronic Frontier Foundation's activism director agreed. She said the move is bad for the public because unclear sharing undermines the "strong legal protections put in place to protect video watchers... A major concern is that individuals will enable the function and not realize that it is continuing to broadcast their video watching habits to social networks - for years."

Selling Your Video History?

Another potential problem stemming from the law, Reitman said, is whether video companies will use that information as a commodity and sell it. "Once data is combined with our social media profiles, it can be part of the data used by the online advertising industry for advertising purposes and we'll be forced to rely on the often confusing privacy settings on social networks to protect our video watching history."

Polonetsky said that turning on this stream of sharing data on a service like Facebook would likely increase targeted ads. He added that although this change tot he law has been pushed by Netflix, not Facebook, social sharing is a huge business driver, and ultimately a win for that site.

"Generally [Facebook's] motto has been, we want a lot of data so advertisers can reach you," he said. "Facebook can and will make available what you're doing, what you're watching, what you're reading, to be used to tailor ads to you on Facebook - and increasingly off of Facebook."

Not All Bad?

The new law is not all bad, said Polonetsky. When it comes to sharing information people do want known, like live Television, sports and films while they tweet or post, it can be a boon for both users and entertainment companies. But it's only positive if people have an on-off switch, and awareness of what they're sharing.

"If you can actually draw together the eyes now watching this video, this game, and comment, I think there's a real positive," he said. Still, he warned that the way the new systems get set up will be critical to the law's long term effects. Again, the key is that people have to know the settings in order for the sharing to benefit them and not inadvertently spread information they'd rather keep to themselves. "It's got to be cut in a way that very affirmatively makes clear that you are in sharing mode so there's no cause for accidents. That's UI design."

Polonetsky isn't the only one who sees the glass half full. Privacy expert and attorney Alan Chapell of Chapell & Associates thinks the old VPPA law was out of date. He pointed to the fact that the law treated the video differently from other content, such as music services like Spotify, which are able to share.

"The VPPA created a rule set that treated movie consumption differently from book and music consumption," he said. "Drawing that type of distinction in a digital world doesn't make sense. If a consumer wants to be able to tell friends, via Facebook or some other platform, which movies he's streamed via Netflix he should be able to do so."

Chapell is right, people should have the right to share when they want to do so. But the underlying issue is that this new law creates a system where the public could easily end up sharing personal data without their informed consent.

This month, the state of California sued Delta airlines in a very big way for failure to comply with the California Online Privacy Protection Act (CalOPPA). The suit alleges that the Fly Delta mobile app lacked a conspicuous, accurate privacy policy, and seeks up to $2,500 for each download. Delta quickly threw up a policy (though researchers have already found flaws in it), but the suit stands, and the potential damages are very real.

The really dumb thing is that this lawsuit never should have happened. Delta was given 30 days notice by the state of California, and it still couldn't make the deadline. There's no excuse for that. It's a privacy policy, made of words, not code. Delta - and any company in that position - should have had a policy up within a week.

So consider this your company's official notice. If you don't have a privacy policy for your mobile apps, write one today. Here are some tips to get started:

Step 1: Review Your App

Get your app developers and your spec together and perform a 6-step review:

1. Document any collection of personally identifiable information (PII). PII can include but is not limited to:

Name

Terrestrial or Email Address

Phone Number

IP Address

Current Location

2. Note whether any of the PII your apps collect (for example, a social security number) is more sensitive than others, and any special steps you take when collecting it.3. Take special note of your target age range. If your apps knowingly collecting information from users under 13, consult your attorney before continuing.4. List all the parties (such as ad networks and technology partners) who have access to PII and how it will be used.5. List all user profile control options: can users request, view, edit or delete their information?6. Outline data retention and disposal policies for all user data, paying particular attention to canceled accounts.

Step 2: Write Your Policy

With that in hand, it's time to write your policy. If you have an attorney on staff with the requisite experience, start there. If not, there are lots of free templates and tools like the Privacy Choice policy maker to get you started. Customize as you see fit. (There are also plenty of paid services that specialize in privacy policies.)

If you have a privacy policy for your website, you've already done most of the work. Your job now consists of identifying the ways in which your app is different from your website, then displaying your policy in a succinct manner that mobile customers will actually read. The Center For Democracy and Technology (CDT) has an excellent, free resource called Best Practices for Mobile Application Developers that will help smooth out the edges.

Step 3: Review Your Policy

In all the prettying up, you may have misinterpreted some facts. Run the finished policy past your developers. Then compare your policy to those mandated by any of the app stores that will be distributing your app. The CDT document has some good summaries, but you'll want to check the most recent terms from the stores themselves.

Step 4: Get Certified (Optional)

If you really want peace of mind, take the next step and get your app certified by TrustE. It's not strictly necessary (Google doesn't even require a privacy policy – but California does, so write one!), but it provides users with an additional layer of confidence, and verifies that you've done your job right.

Having a mobile app privacy policy doesn't guarantee you won't get into trouble. But not having one is just asking for litigation.

Here's something to not be proud of: 61% of all patent lawsuits filed in the U.S. in 2012 (up to Dec. 1) were brought by non-practicing entities. Or, as we like to call them in the media, patent trolls.

This percentage is pretty depressing, since it's up from 29% of 2010 patent suits and 45% of 2011 lawsuits, but there's some good news buried in the same stats: The total number of defendants sued in all patent lawsuits went down from about 5,600 in 2011 to about 3,000 up through the third quarter of this year.

The rise in patent trolling is a reflection of simple economies of scale, according to Santa Clara University law professor Colleen Chien. Because of the way patent trolls can do work their revenue models, the risk vs. reward of launching any lawsuit are minimized… and what risks there are can be spread across suing multiple defendants.

Just Don't Call Them Trolls

Chien doesn't like to use the term "patent trolls," or even "non-practicing entities." Instead, she prefers to describe companies that generate revenue solely through the enforcement of intellectual property they have acquired as patent assertion entities (PAEs).

Sheesh. But there's also some evidence that these PAEs actually do some good in the start-up ecosystem.

To understand why it's suddenly more profitable to be a PAE (and the role PAEs play), it's helpful to understand how the costs of traditional lawsuit add up. When a company like Apple sues Google over patents, there are a lot of up-front costs sunk into the lawsuit, such as the direct costs of research, discovery and hiring a legal team. Add to that the indirect costs, such as getting countersued, and damage to the plaintiff's reputation. Stack those costs against the unknown reward of a settlement or judgment, and it's clear that launching a suit isn't worth it unless the payoff is really big.

Trolls Can Sue For Less

PAEs, right off the bat, have several advantages in this environment.

First, forget about the indirect costs: you can't countersue a PAE, and seriously, how much worse can the reputation of troll get?

The direct costs are kept down by hiring law firms on contingent fees… they get paid only when they win or get a settlement. This can lower the up-front legal fees by 75%. To further mitigate this cost, PAEs often name multiple defendants, spreading the net while keeping the direct legal fees down. That can also lower the risk of losing a judgement.

Ironically, the way PAEs have scaled the lawsuit economy not only makes it easier for PAEs to assert their patents, but also makes it more economical for defendants to settle, no matter the merits of the case. Because the plaintiff costs are lower than the defense's costs, and because there's always the risk of a huge settlement or judgement, it simply makes sense for defendants to suck it up and settle earlier.

The model is fueling a cottage industry of these PAEs, and patent lawsuits in general. In 2010, there were 2,521 patent lawsuits in the U.S. In 2011, that number rose to 3,353. And through Dec. 1, the number of patent lawsuits filed in 2012 was a whopping 4,171.

Despite the numbers of lawsuits going up, the number of actual defendants is going down. In 2011, PAEs alone named a high of 3,018 defendants. Through 2012's third quarter, PAE sued only 1,788 defendants.

Chien believes the drop is due to new rules in the America Invents Act. "It's harder to name more defendants per suit, requiring PAEs to split their suits up and making it 'not worth it' to sue smaller companies," Chien wrote in her presentation. But it's not clear if these lawsuits are netting PAEs more or less money, because of the non-public way many of these lawsuits get settled out of court.

Do Patent Trolls Perform A Service?

Chien argued that PAEs, which tend to target smaller companies that might be more more likely to settle, can also be of actual benefit to smaller startups. PAEs can buy or litigate the patents of startups or individual investors looking to raise money by monetizing their own patents. They can sell the patents outright to the PAE or have the PAE litigate for patent licensing revenue on their behalf.

But value is tempered by the fact that smaller companies often find themselves in a PAE's cross-hairs. It can be like winning the lottery for a PAE to send a summonds toward a hot new startup that's getting a lot of funding. Put both sides together and it's not clear if PAEs are harming or helping the startup ecosystem. Chien asserts that business model is compelling enough to warrant a shift in the perception of PAEs as "trolls."

"Vilifying 'trolls' won't make them go away. But understanding and challenging their economics might," Chien told me after this article was initially posted.

Can Companies Fight Back?

Fighting PAEs can be hard, but it's not impossible. Chien notes that in the 1880s, the railroads got hammered by inventors' patent lawsuits even as they were expanding throughout the country and pulling in huge revenue. The railroads eventually banded together with patent associations, and individual inventors were forced to drop their lawsuits. It could be argued that the railroads squashed plenty of legitimate patent assertions, but history gives the railroads the win.

Similar patent associations may be the key to checking the PAEs that now dominate the patent legal system. Otherwise, startups are going to remain in a world of legal pain.

An Australian court made a huge mistake Monday. It ruled that Google can be treated as a publisher for the content of its search results -- and therefore be found guilty of libel. If the ruling stands, Google will owe $200,000 to music promoter Milorad Trkulja, who sued Google because content on other websites linked him to criminal activity, and Google's algorithm displayed those sites in search results for him.

According to a report in the Guardian, the offending materials suggested that Trkulja was a criminal and that rivals had hired a hitman to kill him. Though he had been shot in a restaurant in 2004, Trkulja has never been convicted of any criminal activity. But people said otherwise on the Web, and they published images as well, so Google did its job and indexed those search results.

Whose Fault Is It?

Trkulja's lawyers began contacting Google in 2009 asking for these search results to be removed, but Google told them to take it up with the publishers of the content instead. That's how this Internet thing works. If someone publishes lies about you, it's their fault - not the fault of the people and companies who read those lies and link to them.

He sued Yahoo, which hosted the site that defamed him, and won $225,000 in damages in March. Not content with that, Trkulja sued Google for linking to the site that defamed him. Google maintained that it is not a publisher, but the jury was not convinced. It concluded that Google should have taken down the offending material after Trkulja put it on notice, and it awarded damages of $200,000. In the eyes of this court, Google is liable as a publisher, even though it merely indexed Web content published by others.

We got the same PR response from Google as the Guardian did in response to the ruling:

"Google’s search results are a reflection of the content and information that is available on the web. The sites in Google's search results are controlled by those sites' webmasters, not by Google."

A source close to the situation tells us that Google is considering an appeal.

A Bad Precedent That Breaks The Web

This is not a good ruling. It breaks the Web. It is unfortunate that Trkulja was put in this situation, though, and he's far from alone. I've covered other recent injunctions against Google for algorithmic auto-complete suggestions that put people's names next to unsavory terms. This is not publishing. This is statistics. Google's tools are merely reflecting the live state of the Web.

But Google is the gateway to the Web for millions of people, and what is true on Google is simply the truth as far as many uncritical searchers are concerned. Google should not be held responsible and asked to doctor its Web results. But people also should not have to deal with the fallout from false information about them that happens to rank well in search.

Clearly Google has to keep improving its reputation signals for the sites in its index, so it can more reliably filter out false information. But this ruling in Australia, if it stands and spreads to other countries, is not a workable solution.

Requiring Google to censor itself does not solve the problem. Google is not a publisher. It's the responsibility of publishers to make sure the information they publish is accurate.

Since 2010 Apple has been suing everybody in sight for allegedly infringing on its intellectual property. Apple hasn't just been suing its rivals but also portraying itself as a beacon of innovation and depicting its rivals as cloners and copycats -- thieves, basically.

So perhaps there is some satisfaction in seeing Apple get smacked for the very thing it keeps accusing others of doing.

Yesterday a federal court in Dallas ruled that Apple must pay $368.2 million to a patent troll called VirnetX because its FaceTime videoconferencing software infringes on some patents owned by VirnetX.

That's pocket change to Apple, which posted $41.7 billion in net profit on $156.5 billion in revenues in the fiscal year that ended in September.

But VirnetX wants more -- it has filed a complaint with the International Trade Commission asking to have a bunch of Apple products (iPhone, iPad, Macs) banned from the market.

Apple has no comment. But of course Apple will appeal, and of course the case will drag on.

What Is The Point?

And of course this is all lunacy. The real lesson to this and all of the other Apple-related cases is that the patent system is ridiculous and has become an obstacle to innovation, one whose ultimate victims are customers.

In the tech world it's considered depicable when trolls like VirnetX use patents to shake companies down for money.

But is it any less despicable to cynically use the legal system to put a spoke in the wheel of your rivals? Or to use the legal system as a kind of marketing tool, a way to smear your opponents?

Because that's what Apple is doing with its cases against Samsung, HTC and Motorola.

Apple doesn't want to set up licensing agreements. Apple just wants to distract its opponents and slow them down.

Marketing By Lawsuit

Apple's patent lawsuits are also a form of marketing, albeit an expensive one, whose goal is to generate lots of stories in the media and to hammer home, via repetition, the notion that everyone else in the smartphone market is simply copying Apple, producing me-too clones that are poor imitations of the iPhone and iPad.

One court in England saw through the charade and resented the notion of being used as a propaganda tool by a large multinational corporation.

The good news is that these lawsuits, all of them, are just speedbumps that will not stop the mobile revolution and probably won't affect the balance of power in the smartphone market.

Back in 2010, when Apple first launched its legal jihad against Android phone makers, Android had 23% market share and Apple had 15%. Today Apple still has the same 15% share -- but Android now holds 75%.

So much for the efficacy of lawsuits as competitive weapons. Someday, I hope, companies will figure out that these things don't work. And someday the patent laws in this country will be updated for the 21st century. Fingers crossed.